Why Treating Patents As Property Is A Bad Idea

from the yet-again dept

We've pointed out in the past why it doesn't make much sense to treat "intellectual property" as "regular property," since it ignores some very important differences between the two. James Bessen and Michael Meurer, who wrote the recent book Patent Failure have always taken a slightly different approach. While they agree with us that the patent system tends to do more harm than good (and they've got a ton of research to back that up), they claim that the problem is that patents don't act enough like property. They say the problem is that the "fuzzy boundaries" around patents mean that there aren't clear rules or "fences" as with real property. So, their prescription is to look for ways to treat patents more like real property.

Eric Goldman points us to a recent paper by well known law professor and patent system expert Mark Lemley on why it's a good thing that patents aren't treated more like property. Lemley is mostly a patent system supporter, but (unlike some around here) he appears to recognize that the system could be improved, and seems open to evidence concerning where the patent system does more harm than good.

This paper makes some important distinctions between patents and real property, and notes that it's probably for the best that in the real world patents actually are not treated like property, because it would slow down innovation if, before anyone invented anything, they had to secure a ton of agreements with patent holders:
It is currently very much in vogue to talk about patent rights as a form of property, and in particular to draw analogies to real property. So let's engage in a thought experiment: what if we took the analogy seriously and actually behaved with patents as we do with real property? Product manufacturers would have to stop ignoring patents. No venture capitalist or bank (or shareholder, should Intel fund the project internally) would give Intel the money to build a new manufacturing plant (or "fab") unless it could demonstrate that it had conducted an exhaustive search for patents it might infringe in manufacturing its chips and had obtained irrevocable or at least long-term licenses to use any patent that anyone might conceivably later assert against the chips or the manufacturing plant. Intel, in turn, would look to a group of "patent insurance" firms that would spring up and that would conduct the search and determine what patents needed to be licensed. Unless and until all of this had happened, Intel could not start construction of its fab, much less make or sell chips produced by that fab. If there were significant disagreement over whether a party legitimately owned patent rights, perhaps Intel could bring a declaratory judgment action to try to clarify those rights, but it would hold construction in abeyance until it got an answer. And since there is no experimental use defense to patent infringement, scientists at both universities and corporations would have to conduct a similar search and wait to get permission from all possible interested parties before they began their research, lest they infringe a patent in the lab.

Would this world be desirable? I'm skeptical. Let's begin with the benefits of such a world. Patent owners would get paid early and often. Patent litigation would decrease, or maybe even disappear entirely, because anyone who wanted to make a product would find the patent owner and enter into a deal up front, or else not make the product. And patent owners who compete in the marketplace, and rely on the patent to preserve exclusivity, would not face competition during the often-protracted period during which the patent is being litigated.

At the same time, these benefits would come at significant cost. First, both research and the manufacture of products would be regularly delayed for years and perhaps decades as potential defendants identified and cleared rights....

Second, a real-property patent system would replace competition with central coordination in a significant number of cases. So far we have assumed that the patent owners will be willing to license their patents. But that is likely not to be true in many cases. Patent owners who compete in the marketplace want exclusivity, and there is no license price an equally efficient competitor will be willing to pay that will compensate for the loss of monopoly rights. Even patent owners who do not compete in the marketplace may find it more lucrative to grant an exclusive rather than a nonexclusive license to someone who does make a product, for the same reasons. Nor will a competing company be particularly sympathetic to efforts by outsiders to engage in research on the invention if the effect of that research will be to design around or improve that core invention. The effect of a real-property or title-search system is to replace competition in the shadow of a patent while it is being litigated with single-firm markets whenever the patentee participates in the market, either directly or by proxy. Researchers who could not obtain a license would direct their scientific efforts into different fields, and potential competitors would do the same, meaning that the owner of a core patent could control who, if anyone, worked on a particular technology. If you believe, as I do, that the evidence suggests that competition is often a better spur to innovation than monopoly, removing that contingent competition is a potentially significant cost.

Third, and perhaps most important, a significant percentage -- maybe as many as three-fourths -- of these patents turn out to be either invalid or not infringed. It is this probabilistic nature that most critically distinguishes patents from real property. Under the current system in patent-ignoring industries, consumers benefit from competition during the time before those patents are invalidated or held not to be infringed. Under a real-property patent system, the owners of invalid patents can capture supracompetitive profits during the time before their patents are invalidated, profits made at the expense of consumers and that they will never have to disgorge. That extra profit, in turn, would create significant incentives to obtain and enforce dubious patents....

Finally, people usually build a house on a single plot of land, while as I have noted, there may be hundreds or thousands of rights that must be aggregated to build a multi-component product. As Carl Shapiro and I have argued elsewhere, this fact exacerbates the patent holdup problem and leads to systematic overpayments by manufacturing companies, because individual patent owners won’t discount the royalty they charge to account for the complementary rights owned by others.
He goes into a lot more detail beyond that, and basically suggests that the current system of companies simply ignoring patents until later is probably better than going to one where patents are fully treated like property.

However, he then suggests a bunch of changes to the patent system that could (he believes) create a more reasonable middle ground: (1) more resources to the patent office to get through more patents faster (2) preventing patent applicants from delaying the process through things like continuations (3) requiring rapid publication of all patent apps (4) allowing peer-review and post-grant opposition to better establish what a patent really covers (5) allow independent invention as a defense against infringement (6) change the rules on "willful infringement" (which currently encourage people not to look at any patents by tripling damages if they find out you even looked at a patent you're later found infringing on) (7) change patent remedy rules to end situations where patent holders can hold up the production of useful innovations (8) require companies to do patent searches to make sure they are not infringing (this, combined with #6 almost flips current willful infringement rules on their head) and (9) require the publication of any patent license terms.

It's quite a list... At this point, this post is long enough not to get into whether or not this is a good or bad proposal (suffice it to say, I think some of it makes sense, while other parts are troubling -- and I'd bet that patent system supporters will say the ones I think are good are bad, and the ones I think are bad are good), but wanted to post it up here for discussion.


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  1.  
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    Anonymous Coward, Aug 11th, 2008 @ 12:28pm

    Statement of the obvious . . .

    Itellectual property is NOT real property. To attempt to treat it as such, is simply ignoring reality.

     

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    retsel, Aug 11th, 2008 @ 1:09pm

    Should i patent or not patent....

    Guys i need some advice... i have developed a web based application and i am in the process of taking to to market. I did a patent search and i am reasonably sure that i can get a patent for the app as nothing like it exists.

    Should i patent it... i am afraid that if i dont it will get stolen and in coperated in to a larger, more established company product.

    Should i patent or not patent....

     

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    moe, Aug 11th, 2008 @ 1:31pm

    Accounting to the rescue

    Ok, so I'm biased (auditor by trade), but if your accountants won't treat your intellectual property (patents, copyrights, and trademarks) as a real assets, then why should the courts?

    In accounting, intellectual property is not treated as a true asset. No accurate value can be attributed to it. And even if you could come up with an arguably supported value for your intellectual property, that could change -- even bottom out to zero -- tomorrow.

    So, when your intellectual property loses value, are you sure you want us accountants to eat up all your profit for the year? That loss has to be shown somewhere, so it'd be expensed against your profits. The flip side of this is that the equity side of the balance sheet would go up when your intellectual property increases in value. But, if you ask any serious investor if they'd take the equity increase, but absorb the expense of falling value I don't think many would be jumping at the chance.

    Intellectual property isn't an asset -- assets are the durable goods that enable you to make a product or provide a service. Intellectual property doesn't do this. At best, intellectual property adds value to the product or service you provide. For that reason, it isn't and shouldn't be treated like property.

    Trust your accountants. In the business world, at the end of the day, it's the accountants keeping people out of jail and providing stability to the investment world.

     

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  4.  
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    Killer_Tofu (profile), Aug 11th, 2008 @ 1:33pm

    Re: Should i patent or not patent....

    Re #2
    If you don't patent, and somebody does steal it in some way, others, including you, are all able to point out that the idea was taken from you.

    You could also see it being stolen as evidence that your idea is good. You will be the first to have chances to expand on it.

    It really doesn't matter if you do patent it with regards to it being stolen. It will be stolen in one way or another. It is inevitable. The question is what are you going to do about it?

    You can embrace it as a form of promotion for one.

     

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    franklin zappa, Aug 11th, 2008 @ 1:41pm

    property

    "Property" is just shorthand for a bundle of rights that are protected in certain ways within a legal system. It does seem foolish to think that any legal system would have the same bundle of rights for an idea as it has for a chunk of land. But that still leaves a lot of room for defining which rights end up being protected in either case.

     

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    Overcast, Aug 11th, 2008 @ 1:47pm

    Good point there, really Moe. And it's a VERY slippery slope, if it's ever treated as real property - then it would be possible to TAX it based on potential, right?

     

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    Willton, Aug 11th, 2008 @ 2:11pm

    Re: Should i patent or not patent....

    Guys i need some advice... i have developed a web based application and i am in the process of taking to to market. I did a patent search and i am reasonably sure that i can get a patent for the app as nothing like it exists.

    Should i patent it... i am afraid that if i dont it will get stolen and in coperated in to a larger, more established company product.

    Should i patent or not patent....


    The people here are probably not the best people of which to ask that question. Most will respond with answers that are in their best interests, not yours. I suggest you talk to your lawyer.

     

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    random_graph, Aug 11th, 2008 @ 2:18pm

    I don't follow the argument

    Why would the asset status of IP cause an enterprise to increase emphasis on up-front patent research? Why would liability for infringement be any higher or lower? Aren't companies insuring themselves today against infringement suits?

    In aggregate, the science of assigning an asset value to a pool of patents is credible and deterministic.
    A) Take a look at the success of www.intellectualventures.com B) Take a look at hedge funds investing in IP-property firms

    I'm undecided on the issue, but the conclusions sure don't follow from the arguments given.

     

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    Mike (profile), Aug 11th, 2008 @ 3:03pm

    Re: Should i patent or not patent....

    Guys i need some advice... i have developed a web based application and i am in the process of taking to to market. I did a patent search and i am reasonably sure that i can get a patent for the app as nothing like it exists.

    No one here can give you qualified advice without a much better understanding of your situation.

    What is your intention with the patent? Is it to keep others from entering the market?

    Should i patent it... i am afraid that if i dont it will get stolen and in coperated in to a larger, more established company product.

    How would that be "stolen"? Wouldn't that just be competition? Do you think that you won't be able to compete with a larger company?

     

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    Mike (profile), Aug 11th, 2008 @ 3:05pm

    Re: Re: Should i patent or not patent....

    The people here are probably not the best people of which to ask that question. Most will respond with answers that are in their best interests, not yours. I suggest you talk to your lawyer.

    Interesting. So you think that the lawyer, who gets paid by the hour and can make a lot of money filing the patent isn't going to respond in his or her own best interests?

    And yet, those of us who have no stake in the matter are somehow less qualified to answer?

    Your logic really astounds me at times.

     

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    Mike (profile), Aug 11th, 2008 @ 3:06pm

    Re: I don't follow the argument

    A) Take a look at the success of www.intellectualventures.com B) Take a look at hedge funds investing in IP-property firms

    As for (A) what success are you speaking of? To date, IV has brought no products to market and made no money. Can you please explain the "success"?

    As for (B) the fact that hedge funds invest in IP hoarders merely reflects how the system rewards hoarding. Isn't that a problem? How is that a success?

     

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    moe, Aug 11th, 2008 @ 3:25pm

    Re: Tax based on potential

    Well, no, assets aren't taxed based on potential. Some assets are taxed, like real property (land, buildings, etc). But, that's because there are specific laws written to tax those specific types of assets.

    On the other hand, many assets aren't taxed. Vehicles and equipment aren't taxed. Nor is accounts receivable. So even if intellectual property were considered an asset, it wouldn't necessarily be taxed.

     

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    retsel, Aug 11th, 2008 @ 4:29pm

    Re: Re: Should i patent or not patent....

    As a 2 person start-up i am not to sure that we can compete with an established player in the projected market... An everyone we have spoken to has told you to patent, patent, patent before we hit the market...

    I dont think that we can keep people out out the market but its a matter of try to have a ace up our sleeve...

     

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  14.  
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    retsel, Aug 11th, 2008 @ 4:35pm

    Re: Re: Re: Should i patent or not patent....

    My point exactly...

     

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    Ira A Levine, Aug 11th, 2008 @ 4:37pm

    Patents as property

    Some form of a use it or lose it concept may be in order.

    Supracompetitive profits during the time before patents are invalidated should perhaps be held in escrow till questions are sorted out

     

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    mobiGeek, Aug 11th, 2008 @ 5:40pm

    A single change to the system

    Here's a suggestion that might fix all the issues, except that the "status quo" group won't buy it:

    Simply change the system so that anyone doing R&D and/or releasing new products need to describe their technologies; patent holders are responsible for identifying potential infringers and notifying them.

    I suspect the argument against will be that the issue of searching all those new product descriptions will be "too hard". Well, try developing new software and determine if it infringes any of the hundreds of thousands of s/w patents out there...

     

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  17.  
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    mobiGeek, Aug 11th, 2008 @ 5:46pm

    Re: Should i patent or not patent....

    1. do you think that this is something that others would want to steal?
    2. do you have the capital necessary to fund a patent application?
    3. do you have the capital necessary to fund a patent dispute?
    4. do you have the capital necessary to search out potential patent violations?
    5. why do you think that someone else implementing your idea will detract from your ability to make money?
    6. isn't plagiarism the highest form of flattery?
    7. are you afraid that if someone else copies your idea, that they will do it better? (i.e. you cannot compete in an open market)
    8. is your idea so simple that someone else can copy it quite trivially? (i.e. get to market before you have a chance to establish your service)

     

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  18.  
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    Willton, Aug 11th, 2008 @ 7:22pm

    Re: Re: Re: Should i patent or not patent....

    i>Interesting. So you think that the lawyer, who gets paid by the hour and can make a lot of money filing the patent isn't going to respond in his or her own best interests?

    Yes, because if the lawyer did and those interests were against the client's interests, he'd be committing malpractice, and that would torpedo his career. I'm surprised you did not think of that, you being the ethical maven that you are.

    The lawyer's job is to serve the client, whether it is to obtain a patent on said technology, help keep the technology as a trade secret, or whatever other option that may be available to this inventor. The lawyer discusses the pros and cons of each option and then lets the inventor decide.

    And yet, those of us who have no stake in the matter are somehow less qualified to answer?

    Yes, because most (note: most, not all) of those here are (1) not qualified to give legal advice, (2) not qualified to give business advice, and (3) have clearly biased views on how things should be (and this especially applies to you). Asking you what to do with a potentially patentable invention is like a pregnant teen asking Pat Robertson whether she should keep the baby. Plus, if this man takes the advice of anyone here, he has no legal recourse against such a person should that person give ill-motivated advice.

    Mr. retsel is better off talking to legal counsel that has Mr. retsel's best interests in mind. Then he can make an educated decision.

    Your logic really astounds me at times.

    I imagine that there's a lot that really astounds you.

     

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  19.  
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    Willton, Aug 11th, 2008 @ 7:28pm

    Re: A single change to the system

    Here's a suggestion that might fix all the issues, except that the "status quo" group won't buy it:
    Simply change the system so that anyone doing R&D and/or releasing new products need to describe their technologies; patent holders are responsible for identifying potential infringers and notifying them.

    On the contrary: that is the status quo.

     

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  20.  
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    MLS, Aug 11th, 2008 @ 9:29pm

    No attorneys I have ever met who are intimately familiar with US Patent Law have ever suggested that patents and real property are "kissing cousins", and Lemley's comments are consistent with the conventional wisdom among practitioners with many years of experience under their belt.

    The title of your article is inaccurate in the sense that Lemley is not talking in the least about error in classifying patents as some form of property, but only about viewing it as analogous to real property. His example of why this is so is manifestly self-evident, something that I and those of my colleagues who have considered this matter long ago concluded.

     

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    Mike (profile), Aug 11th, 2008 @ 10:22pm

    Re: Re: Re: Re: Should i patent or not patent....

    Yes, because if the lawyer did and those interests were against the client's interests, he'd be committing malpractice, and that would torpedo his career. I'm surprised you did not think of that, you being the ethical maven that you are.

    Given how many lawyers (and law students, such as yourself) seem unwilling to look at the actual evidence on patents, then I would say that most patent attorneys commit just this kind of "malpractice" all the time. But it's not actually considered malpractice because most don't know any better -- or choose to be willfully ignorant.

    The lawyer's job is to serve the client, whether it is to obtain a patent on said technology, help keep the technology as a trade secret, or whatever other option that may be available to this inventor. The lawyer discusses the pros and cons of each option and then lets the inventor decide.

    There is an inherent bias if that lawyer stands to make good money from prosecuting the patent.

    There is no such bias from those of us here.

    Yes, because most (note: most, not all) of those here are (1) not qualified to give legal advice,

    We aren't giving legal advice. He asked us for business advice on whether it made sense from a business standpoint.

    (2) not qualified to give business advice

    Ah, and you are? I would think given the number of businesses who pay us good money for advice, that it's pretty well decided that we are qualified to give business advice.

    And, Mr. Law Student, since when is there a law that someone needs credentials to give business advice? I'm curious to have that law pointed out to me.

    (3) have clearly biased views on how things should be (and this especially applies to you).

    Really? How am I *biased*? I have no stake in the matter one way or the other. A patent attorney on the other hand makes his or her living by having more patents processed. That's bias. I'm non-biased on this. Especially compared to someone like you who has just invested thousands upon thousands of dollars to get a degree to be a patent attorney.

    sking you what to do with a potentially patentable invention is like a pregnant teen asking Pat Robertson whether she should keep the baby

    Really? Did you not notice that I most certainly didn't rush out to tell him not to get a patent? Nor did mobigeek. Both of us asked him for more info on his situation, noting that it wasn't possible to give a complete answer without understanding more of the situation.

    If we were really so "biased" then why would we even bother to do that. Again, I most certainly don't know enough about his situation, or the product, or the market to make any judgment. Given the space, it may very well make sense for him to get a patent.

    Mr. retsel is better off talking to legal counsel that has Mr. retsel's best interests in mind. Then he can make an educated decision.

    Ah, Willton, why do you always assume, falsely, that lawyers have a clients best BUSINESS interests in mind? That's simply untrue.

    I imagine that there's a lot that really astounds you.

    Not really.

     

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    Mike (profile), Aug 11th, 2008 @ 10:29pm

    Re:

    His example of why this is so is manifestly self-evident, something that I and those of my colleagues who have considered this matter long ago concluded.

    Ah, well, I'll just let Prof. Lemley know that he wasted his time. He should have asked you instead.

    Obviously, though, he felt that there was some question concerning this matter or he would not have written the article. Next time I see him, I'll let him know that blog commenter "MLS" says he wasted his time.

     

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  23.  
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    Keith, Aug 12th, 2008 @ 3:58am

    If patents should be treated more like real property...

    Perhaps there should be a property tax on them.

     

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    Anonymous Coward, Aug 12th, 2008 @ 6:12am

    Re: Re: I don't follow the argument

    LOL hedge funds are often investors in small independant films . . . yet I dont think thats a great investment route for most people (since 99% of them lose money).

     

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    Willton, Aug 12th, 2008 @ 6:22am

    Re: Re: Re: Re: Re: Should i patent or not patent....

    Given how many lawyers (and law students, such as yourself) seem unwilling to look at the actual evidence on patents, then I would say that most patent attorneys commit just this kind of "malpractice" all the time. But it's not actually considered malpractice because most don't know any better -- or choose to be willfully ignorant.

    Really? How many lawyers and law students do you know that are unwilling to look at the actual evidence on patents? Please, give us some examples of lawyers ignoring evidence to help their clients, and then lets look at those people in comparison with the rest of the legal community. Then we'll see how prevalent malpractice is.

    By the way, I don't think malpractice means what you think it means. A lawyer's duty is to the interests of his client, not to preach ideology.

    There is an inherent bias if that lawyer stands to make good money from prosecuting the patent.

    There is no such bias from those of us here.


    No, there's an inherent incentive to pursue the client's wishes, as not doing so nets the lawyer no money. Personal biases do not enter the picture. If prosecuting a patent is not what the client wants, then it's not what the lawyer should do, as it would hurt his employability in the future.

    You, on the other hand, may not make any money by giving advice, but your ideology of "patents are bad" is pretty evident in your posts and would likely cloud your judgment. That is the kind of bias that is impermissible.

    Ah, and you are? I would think given the number of businesses who pay us good money for advice, that it's pretty well decided that we are qualified to give business advice.

    Who's "us"? You and mobiGeek? Is he qualified to give such advice? Because posting on this forum is going to give you the mobiGeeks of the world offering advice. While I don't know a damn thing about Mr. mobiGeek's professional life, I'm willing to bet that his advice is probably not the best.

    And, Mr. Law Student, since when is there a law that someone needs credentials to give business advice? I'm curious to have that law pointed out to me.

    There is no such law, but it is good practice to do so. I don't ask my bartender for business advice, not because it's against the law, but because it's not prudent. I'm saying that asking the advice of random posters on your blog is not a prudent way to get advice. If he really wanted your help as a business consultant, then he should have sent you a personal email.

    Really? How am I *biased*? I have no stake in the matter one way or the other. A patent attorney on the other hand makes his or her living by having more patents processed. That's bias. I'm non-biased on this. Especially compared to someone like you who has just invested thousands upon thousands of dollars to get a degree to be a patent attorney.

    You're an idealogue: you preach that patents are terrible and should be abolished constantly. That kind of bias would likely cause you to steer a client away from getting a patent, regardless of whether it's in an inventor's best interests to do so. That bias clouds your judgment.

    You don't have to be conflicted in order to be biased.

    And the thousands of dollars I'm spending to get my law degree is for me to be, first and foremost, a professional, not a salesman. It is in my best interests to do what the client wants, as that helps my employability in the future. Pushing for the extra dollar every timem, especially when it goes against the interests of my client, is a good way to ruin my career. So no, just because I would get paid to prosecute patents does not mean that I would push a client to procure a patent when it does not make financial or business sense to do so. I don't know why you fail to understand that.

    Really? Did you not notice that I most certainly didn't rush out to tell him not to get a patent? Nor did mobigeek. Both of us asked him for more info on his situation, noting that it wasn't possible to give a complete answer without understanding more of the situation.

    Look at what you asked above. You and mobiGeek appealed to retsel's ego by asking extremely leading questions that would coax an answer favorable to your ideology. I would hardly call those fair questions. I really hope that's not how you run your business.

    If we were really so "biased" then why would we even bother to do that. Again, I most certainly don't know enough about his situation, or the product, or the market to make any judgment. Given the space, it may very well make sense for him to get a patent.

    Well, it's certainly hard for anyone to think that you're amenable to procuring a patent when you ask questions like "What is your intention with the patent? Is it to keep others from entering the market?" and "How would that be "stolen"? Wouldn't that just be competition?"

    Ah, Willton, why do you always assume, falsely, that lawyers have a clients best BUSINESS interests in mind? That's simply untrue.

    And what makes you assume that a lawyer does NOT have a client's best business interests in mind? Because I can assure you that THAT is untrue.

     

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  26.  
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    The Mad (Patent) Prosecutor, Aug 12th, 2008 @ 6:31am

    Mike et al.

    There are so many misconceptions on the part of the so-called experts on which you rely, as well as some of the people participating in this discussion, there is literally no where to start. Is this the same Lemley who with Moore authored a paper referring to "wearing down the examiner to obtain a patent," something that anyone who has ever prosecuted a single patent application knows is impossible?

    I thought about the situation on the way home, and I think one "problem" (as I see it, anyway) is the general ignorance on the topic. I don't mean that in a disrespectful or insulting way at all - I am not a programmer, for example, and there is much here about which I read and about which I am ignorant.

    Each of you can hold any opinion you want, but I would hope each person would take the time to develop a much better understanding of patents, so that the nonsense from the experts can be quickly discarded. So that each person can come to an informed opinion, not just pick and choose quotes and positions a la carte from the experts with whom they agree.

    Mike, if you want to speak some time about patents (not debate, just speak), I would be happy to make the time to speak with you. Perhaps on instant messenger or skype some night. I would like to let you ask as many questions as you have, so that you can be better informed as to the whole patent process, patent enforcement, etc., and so that you can truly separate the wheat from the chaff. Maybe for an hour or two, even a few times if you have more questions than we can discuss in an hour. I am not the most informed person in the world about patents, but I have been involved in the patent system for more than a decade, and have worked for some of the biggest and best know law firms (intellectual property and general practice) in Washington, DC, and in-house at one of the largest corporations in the world. The point being, while I don't know everything about every topic related to patents, I think I have a good working knowledge about most patent topics.

    Please let me know. My electronic mail address was given under my name. If you think it is useful, you could even make available our instant-messenger conversation to others.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Xanthir, FCD, Aug 12th, 2008 @ 7:01am

    Actually, go ahead and treat them as property

    All intellectual property should be treated as real property. The problem is that no IP-promoters actually want that. They want to have the same legal powers you have to *defend* property, but otherwise want it to still work like something completely different.

    If IP was just P like anything else, then this whole copying problem would just disappear. I, an artist, sell you, the consumer, some music. You, the consumer, now own that music, and can do whatever you want with it, just as you could with any other object I sold you.

    This even clears up the issue of 'stealing' IP! If I have a song worked out in my journals that I haven't released yet or shown to anybody not contractually obligated to keep it secret, but somehow the lyric sheets end up on the internet, that's stealing. Someone has violated my right to privacy and taken my intellectual property without permission, which is straight-up theft.

    The problem is that nearly all IP-as-property advocates want the second scenario to apply even when you have voluntarily sold or given your IP to another party. That's not how property works, people!

    The funny thing is that the best way to make IP act as real property right now is to public domain it.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    MLS, Aug 12th, 2008 @ 7:44am

    Re: Re:

    Your's is an interesting reaction since my comment was not directed to Mr. Lemley. Might I suggest that you re-read my comment and Mr. Lemley's paper, and then reflect for a moment on whether or not your editorial comments are truly accurate?

     

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  29.  
    identicon
    MLS, Aug 12th, 2008 @ 7:57am

    "It's quite a list... At this point, this post is long enough not to get into whether or not this is a good or bad proposal (suffice it to say, I think some of it makes sense, while other parts are troubling -- and I'd bet that patent system supporters will say the ones I think are good are bad, and the ones I think are bad are good), but wanted to post it up here for discussion."

    I would be interested to learn which ones you think are good and which ones you think are bad...and why.

    Since you crafted and posted the article for comment, perhaps you may want to consider the below paper and do the same:

    http://www.stanford.edu/dept/law/ipsc/pdf/barnett-jonathan.pdf

     

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  30.  
    identicon
    Hulser, Aug 12th, 2008 @ 9:19am

    Re:

    There are so many misconceptions on the part of the so-called experts on which you rely, as well as some of the people participating in this discussion, there is literally no where to start.

    Here's a suggestion: why don't you start by giving a single example? If there are as many as you say there are, this shouldn't be a problem.

    Mike, if you want to speak some time about patents (not debate, just speak), I would be happy to make the time to speak with you.

    One of the things that I personally find enjoyable about TechDirt is the amount of involvement that the authors have in the comments section. It gives the average user a sense of involvement in the topic. So, not that I have any say in the matter, but I hope Mike doesn't take you up on your offer to "educate" him. As suggested above, it would be much more in line with the spirit of this site if you just posted your objections/corrections and give everyone the opportunity to comment, including Mike.

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Hulser, Aug 12th, 2008 @ 9:39am

    Re: I don't follow the argument

    Why would the asset status of IP cause an enterprise to increase emphasis on up-front patent research? Why would liability for infringement be any higher or lower? Aren't companies insuring themselves today against infringement suits?

    These are just the kinds of questions that came to mind when I started reading the excerpt from the Lemley article. Perhaps I'm missing something, but the whole premise of this article seems flawed. All of the results listed are stated to be based on what would happen if intellectual property were treated as real property. But whether or not IP is treated as real property seems completely irrelevent to these results.

    For example, here are just two of the stated results...

    "manufacturers would have to stop ignoring patents."

    "litigation would decrease, or maybe even disappear entirely, because anyone who wanted to make a product would find the patent owner and enter into a deal up front, or else not make the product."

    Both of these are complete nonsense. Why does the author think that all patents are being ignored by manufactureres today? Does the author think that treating IP as real property would completely change the litigious nature of our society so that nobody would argue over IP just because of some legal categorization? (Because, as we all know, nobody every sues anybody over real property, right?)

    The real question seemed to be: what would happen if all companies simultaneously started to enforce their IP rights more aggresively. This question seems rather silly in light of all of the posts on TD pointing out the awful results of this very thing.

    Again, maybe I'm missing something, but I just don't get this guy's article.

     

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  32.  
    identicon
    Anonymous Coward, Aug 12th, 2008 @ 11:45am

    Re:

    @ The Mad (Patent) Prosecutor & Mike

    I would like to see the results of that discussion, very much.

     

    reply to this | link to this | view in thread ]

  33.  
    icon
    Mike (profile), Aug 12th, 2008 @ 12:01pm

    Re:

    Mike, if you want to speak some time about patents (not debate, just speak), I would be happy to make the time to speak with you.

    There is no reason not to do this publicly, so that everyone can enjoy the conversation. Trust me, at this point, I have no shortage of folks involved in the patent system (on all sides) to talk to, and I take advantage of talking to them all the time. If you have something to add, why not add it here?

    The last time I took up the offer from someone like you to talk privately, it quickly disintegrated. We discussed stuff privately for about an hour, and he freaked out when he realized that I actually had an understanding of the system, and still wasn't convinced that it was correct -- and could back up my argument with evidence.

    In return, he started spamming the comments here accusing me of working secretly for "communists" and even said that I was employed by the NY Times and CNN to undermine the US system of property rights.

    Since then I've learned. If you have something to say to me, say it publicly. I have no shortage of experts to talk to privately if I need to.

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    Mike (profile), Aug 12th, 2008 @ 12:12pm

    Re: Re: Re: Re: Re: Re: Should i patent or not patent....

    Really? How many lawyers and law students do you know that are unwilling to look at the actual evidence on patents?

    So far, it appears about 75% of the patent attorneys I meet. It may not be a representative sample, but it's a decent sized group.

    You're in that group, by the way, as you repeatedly refuse to consider the evidence against patents, and instead prefer to insult me or insist that somehow lawyers know best and are never, ever biased by what makes them money.

    No, there's an inherent incentive to pursue the client's wishes, as not doing so nets the lawyer no money.

    You really are quite an idealist as a law student. Get out here in the real world, witness the interaction between lawyers and real clients, and then ask yourself how often a lawyer is doing a client's wishes, and how often the lawyer is "shaping" the client's wishes. It's the latter quite often.

    Admittedly, much of this is the fault of inexperienced execs who falsely and mistakenly rely on the "advice" from lawyers who aren't qualified to give business advice on what makes sense.

    You, on the other hand, may not make any money by giving advice, but your ideology of "patents are bad" is pretty evident in your posts and would likely cloud your judgment. That is the kind of bias that is impermissible.


    How is my "ideology" any different from yours, which is "patents are good"? And, of course, my "ideology" as you call it, isn't an "ideology" at all. It's simply pointing out the clear problems of the patent system, backed up with an awful lot of research and evidence.

    I would say your bias is equally impermissible under you own rules.


    Who's "us"? You and mobiGeek? Is he qualified to give such advice? Because posting on this forum is going to give you the mobiGeeks of the world offering advice. While I don't know a damn thing about Mr. mobiGeek's professional life, I'm willing to bet that his advice is probably not the best.


    And yet the world should trust Willton, the naive law student, who has shown an unwillingness to understand the data, and a clear bias in favor of patents?

    You're an idealogue: you preach that patents are terrible and should be abolished constantly.

    There's a difference between an idealogue and simply presenting evidence and giving your analysis of it. It's funny how when the evidence goes against your religion, suddenly the other side is an "idealogue" who is "preaching."

    There's no preaching. There's presenting the evidence and making my case. Just as you do.

    And the thousands of dollars I'm spending to get my law degree is for me to be, first and foremost, a professional, not a salesman. It is in my best interests to do what the client wants, as that helps my employability in the future. Pushing for the extra dollar every timem, especially when it goes against the interests of my client, is a good way to ruin my career. So no, just because I would get paid to prosecute patents does not mean that I would push a client to procure a patent when it does not make financial or business sense to do so. I don't know why you fail to understand that.

    I didn't say you would push it every time. I'm just noting the inherent bias, which you fail to acknowledge -- especially when compared to those who have no inherent bias.


    And what makes you assume that a lawyer does NOT have a client's best business interests in mind? Because I can assure you that THAT is untrue.


    I didn't say they don't have the client's best business interests in mind. I said they often don't understand business enough to know what their best business interests are. You seem to prove that on a near daily basis.

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    stv, Aug 12th, 2008 @ 1:46pm

    stop the shilling!!!

    I thought the attached paper was amusing in light of the following statement...

    © 2007 Mark A. Lemley & Carl Shapiro. We are grateful to Apple Computer, Cisco
    Systems, Intel, Micron Technology, Microsoft, and SAP for funding the research reported in this Article. We emphasize that our conclusions are our own, not theirs. [yeah, right!]

    http://faculty.haas.berkeley.edu/shapiro/stacking.pdf

    At least Lemley tells us where he’s coming from. Why wont you?

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Jim Bessen, Aug 12th, 2008 @ 2:19pm

    not so fast...

    Mike

    You are comparing apples to oranges. Lemley and Meurer & I are not in such disagreement. What Lemley is calling a "real property system" is not at all what Meurer and I are talking about and I think you have become confused by the metaphors.

    Lemley describes a "real property system" as one where patents with uncertain validity or uncertain boundaries (so you can't tell upfront that they are infringed or not) are strongly enforced. That is NOT what Meurer and I advocate. In our terminology, this would represent a failed property system and is quite unlike the property system for, say, real estate, which has clear validity and boundaries.

    Our idea is NOT to add strong penalties to a system with poorly defined rights. Instead, our view is that if the rights cannot be well-defined (as might be the case for software patents), then those rights should be restricted or eliminated.

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    Mike (profile), Aug 12th, 2008 @ 2:30pm

    Re: stop the shilling!!!

    At least Lemley tells us where he’s coming from. Why wont you?

    Stv, I've already answered this question numerous times. We don't do any public advocacy work on behalf of clients, and none of our clients agree with our position on patents.

    I'm not sure why you keep asking this same question and think you're making a point.

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    Mike (profile), Aug 12th, 2008 @ 2:51pm

    Re: not so fast...

    Jim,

    Lemley describes a "real property system" as one where patents with uncertain validity or uncertain boundaries (so you can't tell upfront that they are infringed or not) are strongly enforced. That is NOT what Meurer and I advocate. In our terminology, this would represent a failed property system and is quite unlike the property system for, say, real estate, which has clear validity and boundaries.

    Good point, but my argument is that many are trying to twist your words into saying that all we need to do is treat patents more like property and that would be good. Lemley points out why that doesn't make sense.

    Our idea is NOT to add strong penalties to a system with poorly defined rights. Instead, our view is that if the rights cannot be well-defined (as might be the case for software patents), then those rights should be restricted or eliminated.

    Cool. Thanks for the clarification.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    eleete, Aug 12th, 2008 @ 7:31pm

    Re: Re: Re: Re: Should i patent or not patent....

    Inventor huh ? Funny how your view has shifted.

    Mr. Eleete, I've seen your website, and it appears to me that you are a computer programmer, not an artist or an author. So I find it a bit disingenuous of you to make these bald assertions as if you would know what drives an author or an artist.

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    Perry Mason, Aug 12th, 2008 @ 8:33pm

    So pray tell, Mr. Mike Masnik, who was it that appointed you as an expert in patent law? Why do I not see even the slightest hint of any credentials to support your *expert opinions* about patent law? Did you ever hear what happened to Rick Frankel, after his outing as being the Patent Troll Tracker? HE was a Patent Attorney, and apparently you ARE NOT. So please tell us all why we should listen to your twisted reasoning about Intellectual Property rights, and how it (does not) relate to real estate property rights. I have seen some very wise advice come from these discussions, and nearly none of it comes from you, Mike Masnick. Judging from your very diligent efforts to fend off the hordes of inventors that would like to profit from their ingenuity, it gives me pause to wonder what your true motives are. Is it just the Dirt factor, or the IT ... I will pay you this for saying or insinuating this.... An inquiring mind would really like to know. Della! Make a note of it!

    Perry Mason

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    Lawrence D'Oliveiro, Aug 12th, 2008 @ 11:15pm

    Re: Should i patent or not patent....

    retsel wrote:

    I did a patent search and i am reasonably sure that i can get a patent for the app as nothing like it exists.

    IANAL, but, as I understand it, by doing a patent search, you have already screwed yourself. Any suit for infringement of a patent you've looked at becomes a wilful infringement suit.

    Your only defence is a good offence: you have to get your own patent armoury, so you can threaten to countersue.

     

    reply to this | link to this | view in thread ]

  42.  
    icon
    Mike (profile), Aug 13th, 2008 @ 3:14am

    Re:

    So pray tell, Mr. Mike Masnik, who was it that appointed you as an expert in patent law?

    No one did, nor did I claim otherwise. However, that does not mean I cannot have an opinion, backed up by evidence and research on the *business* and *economic* implications of patent law. You are free to disagree with them, but an ad hominem attack that makes no points concerning what I'm actually discussing doesn't help your case.

    So can I ask you, what makes you an expert on the economic implications of patent law? As apparently, you seem to believe only credentialed experts can discuss anything. And very few lawyers are "credentialed" experts in economics.

    So by your own stated rules, lawyers should not take part in this conversation, as it must be left to those of us with business degrees.

    Did you ever hear what happened to Rick Frankel, after his outing as being the Patent Troll Tracker?

    Yes, he just got a great new job. What's your point?

    HE was a Patent Attorney

    Still is. What's your point?

    apparently you ARE NOT

    That's correct. I am not and have never claimed to be one. Can you point out where I said otherwise?

    But, again, we're not discussing the legal issues, we're discussing the economic and business implications. And, as you've made clear, you are not qualified to talk about such things.

    So please tell us all why we should listen to your twisted reasoning about Intellectual Property rights, and how it (does not) relate to real estate property rights.

    Well, you don't have to listen to me. I never suggested otherwise. I simply present my arguments and you are free to listen or not. I do try to back up my argument with evidence, but again, that's for you to look at or not.

    have seen some very wise advice come from these discussions, and nearly none of it comes from you, Mike Masnick.

    Ok. Good thing you didn't pay for it then.

    Judging from your very diligent efforts to fend off the hordes of inventors that would like to profit from their ingenuity, it gives me pause to wonder what your true motives are.

    Huh? When did I EVER suggest that I want to "fend off the hordes of inventors"? Have you not read what I've been writing? I'm trying to help them make more money by focusing on larger markets. For you to suggest otherwise only makes me question what *your* motives are if you are to misread what I have written in such a blatant manner.

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    mobiGeek, Aug 13th, 2008 @ 8:10am

    Re: Re: Re: Re: Re: Re: Should i patent or not patent....

    You and mobiGeek? Is he qualified to give such advice?
    Who is giving advice? I'm simply asking a bunch of questions and sometimes offer my opinion.

    The questions I asked are ones that I would expect any responsible lawyer to ask of a potential client. I don't think that "get a patent" is a valid first statement from lawyer who hasn't first and foremost determined the financial reality for that client (or at least make sure that the client has made effort to establish this reality).

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    mobiGeek, Aug 13th, 2008 @ 8:16am

    Re: Re: Re: Re: Re: Re: Should i patent or not patent....

    You and mobiGeek appealed to retsel's ego by asking extremely leading questions that would coax an answer favorable to your ideology.
    Which of my questions do you feel are unethical, unprofessional and/or misleading?

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    MLS, Aug 13th, 2008 @ 9:08am

    As unintuitive as it may seem to some, every lawyer I know who practices extensively in the IP area starts off each discussion with the following:

    "Let's talk in detail about what you have done."

    As hard as it may be for some to believe, in my experience most of these discussions conclude with recommendations other than the preparation and filing of a patent application. Patents are merely one legal "tool" among many "tools". They are not a panacea.

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    elzinga, Aug 14th, 2008 @ 11:57am

    Re: Should i patent or not patent....

    @2 retzel, you should really look into the likely expenses and tradeoffs of attempting a patent.

    My understanding is, it is not a sure thing, and it will take some time, money, or experience to shepherd your idea through the bureaucracy.

     

    reply to this | link to this | view in thread ]


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